[Redacted], Sang L., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 16, 2020

Appeal No. 2019005868 (E.E.O.C. Dec. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sang L.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2019005868 Hearing No. 531-2017-00259X Agency No. ARDETRICK16JUL02514 DECISION On September 4, 2019, and on October 1, 2019,2 Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 23, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Agency noted that Complainant’s first appeal was prematurely filed, explaining that when that appeal was filed on September 4, 2019, the Agency has not yet taken final action following the August 22, 2019, Decision and Order of the Administrative Judge and less than 40 days had lapsed since Complainant receipt of that August 22, 2019, Decision and Order. Nevertheless, the Agency stated, on September 23, 2019, the Agency did take Final Agency Action implementing the judge's decisions and orders. The Agency’s September 25, 2019, brief responded on the merits of the appeal because the Final Agency Action had been issued. Complainant then refiled his appeal on October 1, 2019. 2019005868 2 ISSUE PRESENTED Whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not discriminated against on the bases of race (Black), color (black), and reprisal (solely with respect to Incident No. 5 of the instant complaint), when Complainant was allegedly subjected to a pattern of harassment and a hostile work environment regarding leave policy implementation and related discipline. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Emergency Fire Dispatcher, GS-2141-05 at the Agency’s Emergency Dispatch Center, Directorate of Emergency Services (DES) in Fort Detrick, Maryland. On August 17, 2016, Complainant filed an EEO complaint (with subsequent amendment on October 24, 2016), alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on June 28, 2016, Complainant’s first-line supervisor (S1) required Complainant to send an email ten minutes after his shift begins and ten minutes before it ends, to S1, and Complainant’s second and third-line supervisors (S2 and S3); 2. on June 13, 2016, S1 coerced Complainant into signing a memorandum for record explaining the new Emergency Dispatch Center Leave Policy; 3. on June 13, 2016, S1 targeted Complainant when S1 stated that the new leave policy was due to Complainant’s taking unscheduled sick leave in May 2016; 4. on June 13, 2016, S1 communicated a threat to Complainant through paragraph 6 of the Emergency Dispatch Center Leave Policy; and 5. on September 14, 2016, S1 issued Complainant a counseling statement. Record evidence reflected that Complainant had previously engaged in protected activity; and that he made initial EEO contact in the instant complaint (the basis of Complainant’s reprisal allegation) on July 5, 2016. The record also reflected that S1 learned of Complainant’s EEO contact on July 6, 2016. There is however no evidence that S1 was aware of Complainant’s prior EEO activity. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. 2019005868 3 On January 30, 2019, the AJ offered Complainant the opportunity to consolidate case #531-2019- 0092X, which was pending EEO processing at the time, and in which Complainant raised incidents that occurred in 2017. When Complainant turned down the AJ’s offer, the AJ informed Complainant that pertinent evidence and argument pertaining to that second complaint would not be considered in the instant case unless Complainant filed a motion to consolidate. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 4, 2018, motion for a decision without a hearing and issued a decision without a hearing on June 18, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Following are the stated facts: Regarding Issue 1, Complainant and his coworkers were directed to send their first level supervisor, S1, daily emails within 10 minutes of their arrival and no less than 10 minutes prior to their departure. Complainant alleged that this requirement subjected him to discrimination on the bases of his protected classes. S1 explained that he requested that the dispatchers under his supervision send the emails in order to properly track time and attendance when certifying pay. Record evidence reflected that Complainant’s Caucasian and white coworkers (C1 and C2), and C3, an African-American female, were also required to send daily emails. Regarding Issues 2, 3, and 4, in June 2016, the Agency implemented a leave policy requiring the dispatchers to request sick and annual leave from their direct supervisor in advance of the requested leave; and to call him directly when seeking emergency leave. Complainant alleged that S1 coerced him into signing the policy; that S1 implemented the policy because of leave Complainant had taken; and that S1 threatened Complainant in that the policy included a provision that warned an employee may be charged Absent Without Official Leave (AWOL) and/or subject to discipline if the policy was not followed. S1 explained that Emergency Dispatchers would not regularly notify S1 as to when they were calling out, adding that most would call the Police Desk and request leave. S1 asserted that by requiring that leave requests be approved through their supervisor in advance, S1 could effectively manage employees’ shifts and find someone to work that position or S1 could work it himself. Record evidence reflected that all dispatchers, including Complainant’s Caucasian and white coworkers, were issued the emergency leave policy and required to sign it to acknowledge receipt. Regarding Issue 5, Complainant alleged reprisal when, on September 14, 2016, S1 orally counseled Complainant for not following leave procedures on September 5, 2016, due to an emergency. Complainant contended that C1, another similarly situated employee of a different race and color, and who had not engaged in EEO activity, failed to follow those same leave procedures and was not disciplined or counseled by S1. 2019005868 4 Complainant presented supporting documentation including Fort Detrick Law Enforcement Daily Journal Entries from August 9, 2016, September 28, 2016, and December 13, 2016, each of which contained entries indicating that C1 had called the Fort Detrick police desk to request sick leave which was granted by the OIC. S1 stated that he issued Complainant the oral counseling during a discussion regarding Complainant’s performance standards and work expectations. S1 also affirmed that Complainant and C3, the other African American, black employee, who had also engaged in EEO activity, were the only two dispatchers not complying with the new leave policy. S1 admitted that he could not recall C1 calling him on any particular dates; and that C1’s calling the police desk, however, made it look like C1 was only calling the police desk and not S1 too. Evidence presented by S1 indicated that while C2 or C3 may have also on occasion called the police desk sergeant to notify them that they were taking leave, C1 and C2 had also contacted S1 to request leave. Conversely, the evidence reflected that Complainant had refused to call S1 or S2 to request leave on some of the occasions. Instead, Complainant called in to the police desk sergeant. Also, record evidence indicated that Complainant had been reminded by S1 to follow the Leave Policy which required the Emergency Services Dispatchers to request approval for leave from their supervisor. C1 confirmed that S1 required him to send the daily emails as S1 required that Complainant do. C1 stated his belief that Complainant had probably been harassed due to Complainant’s EEO complaint. C1 asserted his belief that everyone was treated the same as it concerned Complainant’s other protected classes. The AJ explained that S1’s reason in Issue 1 was undisputed and plausible. More importantly, the AJ added, Complainant had not produced any evidence that requiring Complainant (and the other dispatchers) to send daily emails when arriving and departing from work occurred because of his protected classes, particularly when other employees of a different race and color were also required to perform this task. With respect to the emergency leave policy, the AJ stated that although Complainant’s allegations did not constitute adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for instituting the policy and implementing it; and that Complainant had produced no evidence that the policy in question was discriminatory in nature. The AJ found that Complainant had not proffered any evidence that the policy targeted him because of his protected classes or that the Agency’s reasons for instituting the policy were a pretext for race and/or color discrimination. The AJ concluded that because Complainant was unable to establish any evidence of race or color discrimination for Issues 1-4, there was no need to address Complainant’s contention that the Agency subjected him to a hostile work environment. The AJ concluded that Complainant failed to establish, even when viewing the evidence in a light most favorable to him, that the Agency subjected him to discrimination on the bases of his race and color for Issues 1-4. 2019005868 5 Regarding Issue 5, the AJ determined that genuine issues of material facts in dispute existed because Complainant’s evidence regarding C1 was supported by S1’s sworn statement that Complainant and C3, who had also engaged in EEO activity, were the only two dispatchers not complying with the new leave policy. Therefore, the AJ held a limited hearing regarding Issue 5 to decide whether C1 failed to call S1 when C1 took unplanned sick or annual leave but then S1 failed to counsel C1 like he did Complainant. The AJ noted that an oral counseling is sufficient to chill protected EEO activity even if it occurred, as the Agency contended, and as the record reflected, during a discussion regarding Complainant’s performance standards and work expectations. On August 22, 2019, the AJ issued a Bench Decision in favor of the Agency, ruling that the testimony of C1, C2, and S1 convinced the AJ that both C1 and C2 contacted S1 to request approval for leave consistent with the applicable Leave Policy. The instant appeal followed. CONTENTIONS ON APPEAL In his Appeal briefs, among other things, Complainant reiterates his allegations. Complainant also contests the AJ’s decision, arguing that he was disadvantaged in this case because he was unable to present supporting evidence as such evidence was not readily available to him. Complainant also included issues that occurred in 2017 and 2019 from his other complaint that were not before the AJ; and which are pending in the EEO administrative process. In its Appeal responses, the Agency requests that the Commission affirm the AJ’s decision because Complainant had failed to meet his burden of proving that the AJ erred in the instant case. The Agency also requests that the Commission reject any argument from Complainant pertaining to incidents occurring after September 14, 2016, because the issues before the AJ in the instant case involve matters occurring between June 13, 2016 and September 14, 2016. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, 2019005868 6 and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant expressed disagreement with the AJ’s decision, arguing that he was disadvantaged because he was unable to present supporting evidence as such evidence was not readily available to him. Complainant also raised unrelated issues that occurred in 2017 and 2019, not before the AJ in the instant case. After a careful review of the record, we find that the evidence does not corroborate Complainant’s contentions; and that the AJ correctly granted summary judgment in favor of the Agency. The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2019005868 7 When a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden shifts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant’s bears the burden to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Here, we find that Complainant failed to establish a prima facie case of discrimination as he has not provided any evidence or facts that give rise to an inference of unlawful discrimination with respect to S1’s requirement that Complainant and his coworkers send the emails in question in Issue 1; and S1’s implementation of the Emergency Leave policy in Issues 2-4. Neither does the evidence support a conclusion that S1 was motivated by retaliation when S1 issued Complainant oral counseling in Issue 5 even though the counseling occurred during S1’s discussions of Complainant’s performance standards with Complainant shortly after Complainant’s initial EEO contact regarding the instant complaint. Importantly, Complainant has failed to show that he was treated less favorably than any similarly situated employee under similar circumstances. C1 also indicated, and the evidence reflects, that Complainant was not treated less favorably than his peers based on Complainant’s race and color. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). Moreover, even if he had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions. Specifically, S1 explained that he requested that the dispatchers under his supervision send the emails complained of in Issue 1 in order to properly track time and attendance when certifying pay. Complainant’s Caucasian and white coworkers were also required to send daily emails. S1 also explained that he implemented the emergency leave policy complained of in Issues 2-4 to request leave so that S1 could effectively manage employees’ shifts to ensure coverage. Again, S1’s implementation of the policy was across the board regardless of the race and color of the employees; and like Complainant, the Caucasian and white coworkers were also required to acknowledge receipt of the policy by signing it. With respect to Issue 5, we agree with the AJ’s finding that reprisal did not occur because the counseling Complainant received was motivated by his failure to comply with S1’s instructions regarding the Emergency Leave policy, not by Complainant’s protected EEO activity. We note that the AJ specifically found, after having a limited hearing on this issue, that the comparatives cited by Complainant did call in to S1 as well as calling into the police desk, while Complainant failed to call into S1. 2019005868 8 Because Complainant presented only his own subjective and conclusory beliefs that discrimination and retaliation occurred without supporting evidence in this case, his claims fail. In the same vein, Complainant’s allegations of a pattern of harassment and hostile work environment fail because the Commission has held that a complainant's testimony reflecting "mere assertions and subjective beliefs" about discrimination is not sufficient to prove discriminatory harassment. McKeey v. Dep’t of Labor, EEOC Appeal No. 0120114021 (Sept. 19, 2013). Moreover, a finding of a discriminatory hostile work environment is precluded by a determination that the complainant has not established that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. Emma B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120140064 (Apr. 7, 2016). Regarding Complainant’s contentions that supporting evidence was not available to him, we find that the record had been adequately developed, and Complainant did not demonstrate how any additional evidence would have supported a different outcome in the instant complaint. Neither is there evidence demonstrating that Complainant was in any way disadvantaged by his inability to present any additional corroboration for his allegations. We decline to address issues raised by Complainant on appeal involving incidents occurring in 2017, from his pending EEO complaint because Complainant was offered the opportunity to consolidate those issues with the instant complaint but turned down the offer. The record is also devoid of any evidence that Complainant filed a motion to consolidate. Besides, the Commission has posited that as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. Equal Employment Opportunity Management Directive for 29 CFR Part 1614 (EEO MD-110), at Ch. 9, § VI.A. See also, Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (Jul. 12, 1999) ("[N]o new evidence will be considered on appeal unless the evidence was not reasonably available during the hearing process"). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order adopting it. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 2019005868 9 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. 2019005868 10 Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 16, 2020 Date